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Analysis: Brett Kavanaugh has no good choices anymore

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© REUTERS/Jim Bourg The U.S. Senate Judiciary Committee hearing room where Dr. Christine Blasey Ford and U.S. Supreme Court nominee Judge Brett Kavanaugh will testify is seen on Capitol Hill in Washington, U.S., September 26, 2018.

By Deanna Paul, The Washington Post

Allegations of decades-old sexual misconduct resurfaced days before Judge Brett M. Kavanaugh was all but set to sail through his confirmation to the U.S. Supreme Court. Kavanaugh categorically denied each claim of misconduct in a letter to the Senate Judiciary Committee and in an interview with Fox News on Monday, vowing to fight the accusations and defend himself.

Then, on Wednesday, a third woman came forward with accusations of sexual misconduct. The woman, Julie Swetnick, said in a declaration that Kavanaugh was physically abusive toward girls in high school and present at a house party in 1982 where she says she was the victim of a “gang” rape. The Post has not independently verified her allegations, which were made public on Twitter by lawyer Michael Avenatti.

Kavanaugh is faced with two unattractive options: withdraw or testify at a high-profile hearing Thursday. He has pledged to do the latter, though either leaves his name tarnished.

“It’s difficult to imagine an exit strategy that’s not personally and professionally devastating for Kavanaugh,” Jonathan Turley, a George Washington University Law School professor, told The Washington Post on Tuesday.

Those encouraging the federal judge to withdraw are telling him to cut his losses, Turley said. But the losses are quite considerable.

“He’s been accused of being an attempted rapist. There’s not a viable option for Kavanaugh beyond appearing at this hearing and defending his actions and reputation,” he said. At this stage, many lawyers think a withdrawal would cement the allegations into his record.

Entertaining a hearing presents a more appealing end: If he falls short on confirmation votes, Kavanaugh returns to the U.S. Court of Appeals for the D.C. Circuit, as others have before him; after a failed nomination related to marijuana use, Douglas H. Ginsburg went on to serve with distinction. A hearing also preserves the possibility of a lifetime appointment to the high court.

Skeptics have compared a Kavanaugh confirmation to that of Supreme Court Justice Clarence Thomas, whose nomination was sliding through before Anita Hill made claims of sexual harassment, suggesting Kavanaugh would take the bench with an asterisk beside his name.

"The Supreme Court has a tremendous bias toward institutional comity. They place a great premium on getting along with each other,” Jeffrey Toobin, a New Yorker writer and CNN legal analyst, told The Post.

Thomas came trailing as much if not greater controversy. Still, he was welcomed and treated as a peer, according to Toobin. If Kavanaugh is confirmed after this tumultuous process, Toobin said that “this stain on his public reputation won’t disappear, but he will be treated like an equal from day one.”

There is also great contrast to be drawn with Thomas:

Even after Hill testified, Thomas was confirmed by a Democratic-controlled Senate. The vote was in his favor: Forty-one Republicans and 11 Democrats voted yes; two Republicans and 46 Democrats voted no.

“That’s inconceivable today. The almost-complete disappearance of moderate Republicans and blue-dog Democrats has locked in a polarization that you see in virtually every issue in politics. I think that’s especially true when it comes to the courts and the justices,” Toobin said.

Despite reasons to forge forward, Kavanaugh must realize the brutal proceeding he will face Thursday.

Accusations against him appear to be piling up, and the hearing promises a slew of personal questions, casting a shadow over his reputation and painting him as a possible sexual predator.

“I don’t think the questioning is going to be particularly hard on [Christine Blasey Ford] because the optics would be too dangerous for Republicans before the election,” Turley said.

The opposite is true for Kavanaugh, who will necessarily endure far more aggressive questioning.

In this forum, Turley said, “he can only play defense, never even appearing to be on the offense. That’s not the best way to score more points.”

The justice system guarantees the presumption of innocence. Still, the political reality is that Kavanaugh will bear the burden at Thursday’s hearing. He must sway the marginal senator; he’s the only person in the room who must persuade 50 senators to vote in his favor.

The hearing is unlikely to change many minds, according to Turley, and a presumption will not help him with a jury of politicians.

“There’s a disconnect where the senators on each party line decry the absence of an impartial hearing for ‘their’ witness, while publicly picking which side is credible before hearing any testimony,” he said, which is not a vindication but could start a new legacy for Kavanaugh.

That’s not without consequence, though.

“These hearings create lasting emotional injuries for nominees. We forget there are human beings at the center of this,” said Turley, comparing Ford and Kavanaugh to “props” being used in a “political play.”

It’s symptomatic of broader political problems and the changing nature of how people communicate with their constituency, said a former judiciary staffer for then-Sen. Joe Biden, granted anonymity because commenting could affect their current employment. “It’s a shame that judicial nominations have become a political football. Worse, that who you blame depends on where you sit. Once you go in this direction it’s very hard to go back.”

Others, such as Michael Waldman, president of the Brennan Center for Justice at New York University School of Law, justify the last-minute dramatics by pointing out that inflammatory accusations need to be investigated. Waldman also blamed the Trump administration, “who seem to want to treat this as a campaign where speed and brute political force are the key factors.”

At times when Congress or the presidency has fallen in public repute, Waldman said that the Supreme Court has largely hovered above, remaining rooted in legal principle. Justices, he said, take seriously that it still is one of the more respected institutions in American life.

And though that may be true, this confirmation has broken down along political lines in an unprecedented way.

“Every day it becomes more bizarre or more grotesque. Even [Kavanaugh high school friend] Mark Judge is hiding out like he’s a mob informant,” Turley said. A possible U.S. Supreme Court justice has announced on national television that he was a virgin through high school.

Avenatti was waving around allegations involving an alleged third victim, before going public hours ahead of the scheduled hearing.

As The Post’s John Wagner reported Wednesday, Swetnick said she observed Kavanaugh drinking excessively at house parties and engaging “in abusive and physically aggressive behavior toward girls.”

Swetnick said she witnessed efforts by Kavanaugh and others to get girls inebriated so they could be “gang raped” in side rooms at house parties by a “train” of numerous boys.

“I have a firm recollection of seeing boys lined up outside rooms at many of these parties waiting for their ‘turn’ with a girl inside the room. These boys included Mark Judge and Brett Kavanaugh.”


“This is ridiculous and from the Twilight Zone,” Kavanaugh said in a statement through the White House on Wednesday. “I don’t know who this is and this never happened.”

Said Turley, a day earlier: “This confirmation hearing reached a new low. A Slurpee has more nutritional value than the Kavanaugh confirmation hearing.”

John Wagner contributed to this report.

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